In re D.J. CA1/2 ( 2014 )

Filed 9/25/14 In re D.J. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re D.J., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.J., A140053
Defendant and Appellant. (San Mateo County
Super. Ct. No. 81841)
I. INTRODUCTION
Following a contested hearing, appellant D.J. was continued as a ward of the
court1 for committing one count of robbery and one count of attempted robbery, and was
ordered removed from his parents’ custody. He appeals, claiming that the evidence is
insufficient to sustain the attempted robbery adjudication and that the juvenile court erred
in not stating a maximum period of confinement. We conclude the record contains
substantial evidence supporting the attempted robbery adjudication. We will, however,
remand for the limited purposed of allowing the juvenile court to specify a maximum
1
Previously, the San Mateo Superior Court had adjudged appellant to be a ward of
the court after sustaining an allegation of petty theft (Pen. Code, § 484), a misdemeanor,
on December 29, 2011. The court sustained a second allegation of petty theft (Pen. Code,
§ 484) on October 10, 2012.
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term of confinement. The jurisdictional and dispositional orders are affirmed in all other
respects.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2013,2 then 17-year-old D.J. participated in a series of events that led
to multiple robbery related charges. However, appellant only challenges the true finding
as to one count of attempted robbery, so our recitation of the facts will focus primarily on
the events pertinent to that charge.
On the evening of March 4, appellant’s cousin and another man picked up
appellant in a stolen BMW. Shortly before 4:00 a.m. the following morning, Lolita
Abecilla and her neighbor, Andres De La Cruz, were walking down Geneva Street in San
Francisco towards the Balboa Park BART station. De La Cruz was walking about three
feet in front of Abecilla. It was very dark. As they walked, De La Cruz noticed an
unidentified number of people sitting in a car parked in a driveway. After they passed the
parked car, De La Cruz heard footsteps approaching them from behind.
A man ran up to Abecilla and grabbed her purse off her arm. She could not see
the assailant in the darkness but could tell it was a man when he moved away from her.
De La Cruz turned and saw Abecilla struggling momentarily. Her right shoulder was
injured when the bag was pulled away.
De La Cruz testified that he then heard a gun. After the man snatched the
handbag, he “clicked the gun, like a shotgun, twice, clicking, and then after that, he asked
us, ‘Give me your phone,’ and then after that, ‘If you call the police, I will shoot you.’ ”
Abecilla testified that, immediately after her purse was taken, she tried to call 911 on her
cell phone. The man who took her purse warned her that if she called the police, “ ‘I’m
going to shoot you.’ ”
The assailant then ran with Abecilla’s purse back towards the parked car. There
was another person standing by the car. The man who took the purse and the other
person standing by the car got into the car together and drove away.
2
All further dates refer to 2013.
2
On March 5, Sergeant Inspector Timothy Brophy of the San Francisco Police
Department responded to a location in the Bayview neighborhood regarding a car-jacked
vehicle that had been associated with several robberies. The vehicle was a newer model
silver BMW. When Brophy arrived, the occupant, Eddie Tillman, was en route to the
hospital. Investigators found two cell phones in the car and a sawed-off rifle in the trunk.
The next day, Sergeant Brophy interviewed Tillman at the San Francisco county
jail. Tillman identified appellant, his cousin, as the owner of one of the cell phones found
in the BMW.
Sergeant Brophy interviewed appellant on two different occasions, on March 8 at
the Hillcrest Juvenile Detention Center in San Mateo County,3 and on March 12 at the
Hall of Justice in San Francisco. Appellant waived his rights both times and spoke with
Sergeant Brophy. Both interviews were recorded with appellant’s knowledge. The
interviews were not transcribed, but the recordings were admitted into evidence as two
CDs.
During the interviews, appellant admitted to Sergeant Brophy that he had been in
the silver BMW on the night/morning in question and that he had been present during the
incident on Geneva Street. Appellant said he got out of the vehicle and was standing
nearby “for intimidation.” Appellant identified the BMW he and the other two men were
riding in that night and the sawed-off rifle the perpetrator used to threaten the victims.
Appellant also identified the purse that was stolen and admitted to handling it in the car.
On March 14, the District Attorney of San Francisco County filed a juvenile
wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that, on March 5,
appellant committed two counts of second-degree robbery (Pen. Code, §§ 211, 212.5,
subd. (c)), a felony, and three counts of attempted second-degree robbery (Pen. Code,
§§ 212.5, subd. (c), 664), a felony. As to each count, the petition alleged that a principal
was armed with a firearm within the meaning of Penal Code section 12022,
subdivision (a), paragraph (1).
3
Appellant had been detained on an unrelated probation violation.
3
The juvenile court held a contested jurisdictional hearing on June 10 and 11. At
the conclusion of the hearing, pursuant to the prosecution’s motion, the court dismissed
two counts of attempted robbery, along with the corresponding firearm allegations
(counts 4 & 5). The court then sustained allegations regarding one count of robbery and
one count of attempted robbery (pertaining to the Geneva Street incident), but did not
sustain the corresponding firearm allegations (counts 1 & 2). The court also did not
sustain the allegation regarding the remaining robbery count (count 3). The court ordered
the matter transferred to San Mateo County (appellant’s county of residence) for
disposition.
On September 19, the San Mateo County juvenile court held a dispositional
hearing. The court continued appellant as a ward and ordered him to serve 200 days of
therapeutic detention, followed by 60 days of electronic monitoring, and stayed a
commitment to Camp Glenwood correctional school.
On October 18, appellant filed a timely notice of appeal.
III. DISCUSSION
A. Sufficiency of the Evidence to Support Attempted Robbery.
Appellant concedes that “a bare minimum of evidence supports the conclusion that
appellant acted as an aider and abettor in the Geneva Street incident,” and he does not
contest his adjudication for robbery of Abecilla. However, he contends his adjudication
for attempted robbery of De La Cruz must be reversed because the evidence was
insufficient to sustain that allegation. He argues that the court’s finding violated his
federal due process rights under the Fourteenth Amendment and reversal is required. We
are not persuaded.
The substantial evidence standard of review applies here, as it does in adult
criminal appeals. (In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079.) “Thus, we
review the entire record in the light most favorable to the prosecution to determine
whether any rational trier of fact could have found the essential elements of the alleged
crimes beyond a reasonable doubt. [Citation.] We presume in support of the judgment
the existence of every fact the trier of fact reasonably could deduce from the evidence,
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and if the circumstances reasonably justify the trier of fact’s findings as to each element
of the charged offense, we must affirm even if the circumstances and evidence would
support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)” (Id. at
pp. 1079-1080.) Substantial evidence is evidence that is “ ‘reasonable, credible, and of
solid value.’ [Citation.] . . . ‘[I]t is the [trier of fact], not the appellate court which must
be convinced of the defendant’s guilt beyond a reasonable doubt.’ [Citation.]”
(People v. Lewis (2009) 46 Cal.4th 1255, 1290.)
“The federal standard of review is to the same effect: Under principles of federal
due process, review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable
doubt, but, instead, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)”
(People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (Pen. Code, § 211.) The attempt to commit robbery is a crime, punishable
under Penal Code section 213, subdivision (b). In order to prove an attempted robbery of
De La Cruz, the prosecution was required to establish two elements: the specific intent to
commit robbery, and “a direct but ineffectual act done toward its commission.” (Pen.
Code, § 21a; see also People v. Watkins (2012) 55 Cal.4th 999, 1018.)
Appellant argues there is no substantial evidence to support a finding that De La
Cruz was the victim of an attempted robbery. Noting that the assailant demanded, “Give
me your phone,” referring to a single phone, and that only Abecilla was holding a phone,
appellant contends the assailant could only have been referring to Abecilla’s phone and
had no intention of taking anything from De La Cruz. In the darkness, appellant
continues, it would be understandable for De La Cruz to be confused about who the
robber was speaking to. Moreover, the assailant could have been pointing the gun at
De La Cruz to hold him at bay while he prevented Abecilla from calling for help. The
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assailant then ran away, without further investigating whether De La Cruz had a phone or
any other possessions. “There is simply insufficient evidence,” appellant argues, “for the
trier of fact to be able to conclude, beyond a reasonable doubt, that an attempted robbery
had been committed.”
Viewing the facts in the light most favorable to the judgment (People v. Lewis,
supra, 46 Cal.4th at p. 1289), the evidence is sufficient to support the attempted robbery
adjudication. Appellant, his companions, and the stolen BMW were associated with
several robberies and attempted robberies of individuals on the streets of San Francisco
that night. De La Cruz and Abecilla walked past the parked car and were targeted; the
assailant came up behind them. De La Cruz testified that the threat to shoot was directed
at both himself and Abecilla, that the gun was pointed at both of them, and that the man’s
demand, “Give me your phone,” was directed at both of them. Resolving all conflicts
and drawing all reasonable inferences in favor of the court’s orders (People v. Rodriguez,
supra, 20 Cal.4th at p. 11), the trial court could reasonably conclude that the assailant
intended to take property from De La Cruz. Appellant would have us draw a different
conclusion from the evidence, but this we cannot do.
B. Statement of the Maximum Period of Confinement.
Appellant argues that the juvenile court erred by not stating a maximum period of
confinement when it removed him from parental custody. Welfare and Institutions Code
section 726, subdivision (d), provides in pertinent part: “If the minor is removed from
the physical custody of his or her parent or guardian as the result of an order of wardship
made pursuant to Section 602, the order shall specify that the minor may not be held in
physical confinement for a period in excess of the maximum term of imprisonment which
could be imposed upon an adult convicted of the offense or offenses which brought or
continued the minor under the jurisdiction of the juvenile court.” The parties agree that
the matter should be remanded to the juvenile court to specify the maximum period of
confinement. (Ibid.; Cal. Rules of Court, rule 5.795, subd. (b).)
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IV. DISPOSITION
The matter is remanded for the juvenile court to state the maximum period of
confinement. In all other respects, the jurisdictional and dispositional orders are
affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
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